Director of Public Prosecutions v Martin

[2015] VCC 1472

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WODONGA
CRIMINAL JURISDICTION

CR 15-01103

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT LESLEY MARTIN

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wodonga
DATE OF HEARING:
DATE OF SENTENCE:	6 November 2015
CASE MAY BE CITED AS:	DPP v Martin
MEDIUM NEUTRAL CITATION:	[2015] VCC 1472

REASONS FOR SENTENCE
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Subject: aggravated burglary – substantial discount for assistance to authorities
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr J. Kantor

HER HONOUR: 

1Scott Lesley Martin, you have pleaded guilty before me to one charge of aggravated burglary and one charge of causing injury recklessly.

2Each of these charges arise out of your actions on 15 January of this year.  In the early hours of the morning on that day you agreed with your female co-accused that you would go to the house of Melinda Berkeley to do what is colloquially known as a “run-through” to demand the victim's prescription medication, Oxycontin. She was legally in possession of this medicine but I understand it has has a significant street value as an addictive drug.

3You arrived at your victim's house in the early hours of the morning.  Both your victim Melinda Berkeley, her partner and her children were asleep in that house.  You and your co-accused entered the house wearing balaclavas.  You were armed with a baseball bat and your co-accused was armed with a hammer.  Melinda Berkeley woke up suddenly, feeling a blow to her hip.  It was a blow inflicted by you using the baseball bat that you carried.  Your victim and her partner saw both you and your co-accused in her bedroom wearing balaclavas.  You were both yelling at her, demanding that she give you her medication.

4The blow that I have described that you inflicted to your victim was of a significant degree- enough to cause a large bruise to her upper-right thigh.  Your co-accused then hit the victim with a hammer causing a bruise to her right elbow and right first finger and a cut to her finger.  Your victim's partner also awoke to see you both in the bedroom.  You pointed the bat at him and said words to him along the lines of, "Don't move".

5So that activity towards Melinda Berkeley, which I have described so far, is the subject matter of the charge of recklessly causing injury.  That is the injury to Melinda Berkeley which you inflicted upon her with a baseball bat.

6I am also dealing with you today for two summary charges arising out of the same incident.  Each of those summary charges is a charge of unlawful assault, each offence being directed towards one of your victim's children.

7Those summary charges arose in the following way.

8The 12-year-old daughter of your victim saw your co-accused and heard you during this incident.  She saw your co-accused swing a hammer at her mother; she heard her speaking to her, demanding that she give her the stuff.  She also heard you swearing at her mother and saying, "Give me the pills".  The 12-year-old was understandably scared.  She was afraid that she would be physically hurt.  Your actions towards this girl is the subject matter of the first summary charge of unlawful assault.  You did not physically strike this girl, but you put her in fear that she would be physically hurt.

9The second summary charge of unlawful assault relates to your victim's son, who was also 12 years at the time.  He also saw both you and your co-accused come into the house, saw his mother's finger bleeding and heard both of you screaming at his mother and saying things along the lines of, "Grab the medicine".  He saw that you were armed with a bat.  The actions which I have outlined also put this young boy in fear that he would be subjected to force.  He hid behind a couch because he was scared.  He was later to tell the police that he was scared that he might be grabbed and used as a hostage. 

10This action towards this young boy is the subject matter of the second summary charge of unlawful assault.  As with his sister, you did not physically assault the boy; however, you put him in fear that this was likely to happen. 

11I now deal with the charge of aggravated burglary.  Your victim left the bedroom and went to the lounge room, where she picked up her handbag which contained her medication.  Your co-accused said words along the lines of, "I will hurt and terrorise your kids if you don't give me the bag".  You also stepped into the lounge room, brandishing the baseball bat.  Your co-accused took the handbag with the medication from the victim and then left the house together with you.  Your action in entering the victim's house, as I have described it, intending to steal from Melinda Berkeley, is the subject matter of the charge of aggravated burglary. 

12So that is the subject matter of each of the charges for which I am to sentence you today.

13The trial against your co-accused Kelly-Anne Walsh is still continuing.  Initially you also pleaded not guilty to these offences. However, you were yesterday arraigned and pleaded guilty to each one of the offences for which I am to sentence you today.  This plea followed you making a police statement on 25 September 2015 in which you admitted your role in the offending. 

14In that statement you said that you did not want to do the criminal activity because you knew the victim's children were at home but that you were affected by ice at the time.  You also stated that you were scared of admitting your participation with your co-accused because of your fear of reprisals whilst you were in prison on remand.  In describing what happened in relation to this incident in that statement you have agreed with the essential facts as I have set them out in these sentencing remarks.

15The maximum penalty for the offence of aggravated burglary is 25 years' imprisonment.  The maximum penalty for the charge of recklessly causing injury is five years' imprisonment.  The maximum penalty for each of the charges of unlawful assault is three months' imprisonment. 

16I have not received any victim impact statements. However, it is obvious that the manner in which you and your co-accused broke into your victims' house in the dead of the night and awoke them from sleep by attacking them must have caused them significant fear and trauma.

17Your attack was with a weapon capable of inflicting a great deal of harm.  I therefore take into account the effect of your actions on your victims as a very significant matter in sentencing you today.  I also note that those actions took place in the presence of two young children.  This is also a very significant aggravating factor.

18The offence of aggravated burglary itself is very serious.  Each person in our community is entitled to expect that they will be safe at home.  Your action in breaking into your victims' home and attacking both Melinda Berkeley and her partner were cowardly.  I have a duty to signal to the community that such activity will not be tolerated by the courts.  Indeed it is usual that a significant sentence of imprisonment be imposed in cases such as this. 

19You are a man with many prior convictions.  Your criminal history commenced in 1989, when you were a relatively young man, and you have been regularly before the courts up until March of 2014, just shortly before the offences for which I am to sentence you today.  At the time of this offence you were 45 years old and you are now 46.  You are not any more a young man, you are a mature man who should know better.

20It is difficult to understand your offending given the close and supportive family life that I have heard about and the lack of exposure by you to trauma in your early life.  You have two elder brothers and one younger brother and I am told you have a very close relationship with both your parents and grandparents.  You were brought up on your father's wheat farm.  As a teenager you helped your parents with the running of the farm. 

21You have a qualification as a farmer through a farm apprenticeship course that you undertook and you have worked in various capacities associated with farming throughout your adult life, although I have heard that you have not worked effectively for the last 14 years.  You have worked driving heavy farm machinery, doing welding, construction work and working on road construction. 

22Unfortunately your relationship with your parents became fractured for some time in the recent past.  As I understand it, this has come about because of your use of drugs but also because they did not approve of a previous partner of yours, with whom you had two children.  One of those children, a now 22-year-old daughter, was in court with you at the commencement of your plea and has provided significant support to you during this proceeding.  I am told that your son also supports you.  I am told that your parents are also now again prepared to support you but that this support is condition upon you finally ceasing your drug habit.

23As I understand it, your addiction to drugs arose when you broke your neck in a car accident many years ago and were prescribed opiates to deal with the pain.  You became addicted to those opiates and this then led you to using other drugs as well to cope with the pain and also to cope with pain caused by a further car accident in recent times.  You have also suffered from depression and anxiety for many years and have been prescribed medication for that depression over the last 15 years.

24There was some medical material on the plea indicating that you are still taking medication to address this condition of anxiety and expression.

25Other than those issues, you appear, as I have said, otherwise to have led an early stable life.  You have no history of maladjustment, you have a good family upbringing, you continue get on well with your parents and siblings and your daughter and son and other members of the community.  There is no diagnosis of personality disorder at all.

26So as I said, Mr Martin, given that good family and working history, it is not readily apparent to me as to why you have continued offending in the way that you have over such a long period of time.  You clearly have in the past shown a great lack of insight into the damage being done to your own life and to the lives of those around you by your drug use and the inappropriateness of your past criminal behaviour.

27It seems, however, Mr Martin, that you may have at last turned the corner.  Your attitude to the offences for which I am to sentence you today shows that you are now prepared to take responsibility for your behaviour.  One of the very significant matters which I must take into account in sentencing you today is the fact that you have pleaded guilty to each of these offences and also that you have indicated your preparedness to give evidence in the trial of your co-accused.  These facts are the foundation stones of the plea made on your behalf by your counsel. 

28I firstly deal with your plea of guilty.  This plea was not made at the earliest available time; however, I do note that it was made shortly after significant evidence was provided to your legal representatives confirming your involvement in this incident.  As I have said, the offending itself took place in January 2015.  Although you pleaded not guilty at the committal in June 2015, I accept that the child witnesses were not cross-examined at the committal, saving them the trauma of reliving the incident, and that you did make an offer to plead guilty shortly after the committal when the totality of the prosecution evidence became known to you.  This plea offer was accepted in September of this year. 

29I accept your plea of guilty as evidence of remorse.  I accept also that you detailed in the first statement taken by police, which I have referred to earlier, that you regretted what you had done on that night.  In particular you said this:

"I have found it really hard every day about what we did we did to those kids.  I was taught better than that.  I have embarrassed my family and that makes me sick.  I apologise, for what it's worth".

30You also expressed significant remorse when you saw Mr Kelly, a psychologist to whom I will later refer.  I have no doubt, Mr Martin, that this expression of remorse both in your statement and in the evidence of Mr Kelly is genuine. 

31I now turn to consideration of the evidence which you gave in the witness box on your plea.  In giving that evidence you undertook that you would give evidence in the trial of your co-accused Kelly-Anne Walsh and you undertook that that evidence would be consistent with the content of two statements which you had made to the police.  I have already identified the first statement.  In that first statement your co-accused was described but not identified; in the second statement you have identified your co-accused as Kelly-Anne Walsh and you have described her significant participation in these events.

32The prosecution has conceded that your evidence will be of vital importance in the case against your co-accused.  The value of your preparedness to give evidence in this way is therefore of the highest significance.  There is a very good public policy behind this.  The court must encourage persons to cooperate with the authorities in order that justice may be done.  In doing so, you have assisted to strengthen the hand of law enforcement authorities and have actively assisted in the administration of justice. 

33Your willingness to cooperate in this way is a very significant indication of remorse for being involved in the events for which I am to sentence you.  It is an act which provides great benefit to you in your plea but also great benefit to the community and I must address that in sentencing you today.  It facilitates the course of justice and it is also a very significant pointer towards consideration of your prospects of rehabilitation.

34Indeed it may be that your willingness to give evidence is a tangible demonstration of your desire to put your criminal past and your criminal associates behind you and to build a proper future for yourself upon your release from prison.

35Mr Martin, as I have already said, you have a very significant criminal history; however, I note, as was pointed out by your counsel, that the offences which you have committed in the last 13 years are predominantly offences involving drugs, driving or dishonesty.  Significantly, in sentencing you today, your last offence of violence, although that offence was an offence of false imprisonment and aggravated burglary, occurred in December of 2002.  There have been no offences of violence since that time.  I accept that you come before me today as not a violent man.

36I have earlier referred to a report from Christopher Kelly.  He is a psychologist who prepared a report for the purpose of this plea.  He assessed you as to your risk of future violence and assessed that you are presently at a moderate risk of future violence.Significantly, Mr Kelly is of the view that this risk is dependent upon your opportunities, your circumstances, any destabilising factors and upon you seeking adequate professional and personal support into the future.  He indicates that you clearly need both medical and psychological assistance in managing your condition of anxiety disorder, depression and your drug addiction.

37You told Mr Kelly that when you do not use drugs you are able to think in a rational and sensible way; when you do use drugs you are easily influenced, impulsive and do not take into account the consequences of your behaviour and the effect of your behaviour upon other people.

38You have taken drugs, Mr Martin, for over 15 years but have only recently forayed into taking ice.  You have attempted to wean yourself off drugs as recently as early 2014 when you were prescribed the appropriate medication to assist you to do so.  Unfortunately at that time you did not have the fortitude to leave your life of drugs and to leave your drugtaking associates.

39Mr Martin, you are now at a crossroads.  If you are able to take advantage of the opportunity which I will give to you today and cease using drugs altogether, you have very good prospects of reclaiming your life.  I note that whilst you were in prison you completed some courses to assist you on your release.  Unfortunately, because of the prison riot on 1 July of this year, the prisons in which you have been held have been subject to lockdown.  I am told that the almost ten months' imprisonment that you have served so far has been served  on the basis that you have been locked down in your cell for 22 hours every day since 1 July and that you have been unable to undertake any further courses or any employment in prison.

40Given that you have agreed to give evidence against your co-accused, I expect that the sentence of imprisonment that I will impose upon you today will be served wholly in protective custody.  This is a very significant matter indeed, making your period of incarceration much more onerous than it would otherwise have been.  I have given this issue significant weight in framing my sentence today.

41Mr Martin, I have determined that the appropriate course to take, having weighed in the balance each of the matters I have referred to this morning, is for you to be sentenced to a short term of imprisonment followed by the imposition of a community corrections order.  This will have the benefit of signalling to the community that offences such as you have committed will certainly attract a gaol sentence, but it will simultaneously provide to you a structured environment to assist you upon your release from prison to achieve a hopefully permanent rehabilitation from drug use.

42I need to make it clear, Mr Martin, that I can only take this course and impose a community corrections order upon you if you agree to carry out its terms.  From the submissions of your counsel to me I presume that this is the case, but I need you to acknowledge that as well.  Do you agree, Mr Martin, to carry out the terms of the community corrections order?

43OFFENDER:  Yes, I do.

44HER HONOUR:  All right, Mr Martin, can you stand up, please. 

45Scott Lesley Martin, on the charge of aggravated burglary you are convicted and sentenced to be imprisoned for 18 months.  Upon completion of that term of imprisonment you will be ordered to serve a community corrections order for a period of two years.  On the charge of causing injury recklessly you are convicted and sentenced to be imprisoned for six months.  On each of the summary charges you are also convicted and sentenced to be imprisoned for three months. 

46I direct that each one of those sentences of imprisonment imposed by me are to be served concurrently, as each of them arise out of the same series of events.  That means, Mr Martin, that the total effective sentence will be 18 months' imprisonment.  I declare that the period that you have already spent in custody - namely 295 days - should be reckoned as a period of imprisonment already served under the sentence.  I declare that I will not impose a non-parole period, given that the sentence of imprisonment will be followed by the imposition of a community corrections order.

47I further declare pursuant to s.52AB of the Sentencing Act that your undertaking, as I have described it in these sentencing remarks, to give evidence be noted in the court records with the effect that you will after you have been sentenced this day assist the law enforcement authorities in the prosecution of Kelly-Anne Walsh and that this assistance has been taken into account in imposing the sentence.

48Now, Mr Martin, I must explain to you the conditions of the community corrections order.  There are several basic conditions of each community corrections order.  This order will last for two years and commences upon completion of your period of imprisonment.  Within two days of that completion you must attend at Wodonga Community Correctional Services and the mandatory terms which apply are that you must not commit any other offence for which you could be imprisoned during the time the order is in force.

49Secondly, you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations; that will be explained to you at the community corrections centre.  You must report and receive visits from the delegate of the Secretary.  You must let a community corrections officer know if you change your address or job.  You must not leave Victoria without first getting permission to do so from the Secretary.  If, Mr Martin, you are living in Wodonga at that time, then there will be special arrangements that need to be put in place in order for you to be able to cross the border.  You must obey all lawful instructions from and directions of the Secretary. 

50Now, in addition to those conditions I am going to order that you perform 300 hours of unpaid community work over the period of two years.  I will order that you be supervised and I will order that all the hours of treatment and rehabilitation which are organised through that supervision be counted as hours of unpaid community work.  I will further order that you undergo assessment and treatment for drug abuse or dependency and you must undergo any mental health assessment and treatment plan which is directed by the regional manager.  You must also participate in programs and courses that address factors relating to that offending.

51As I said to you before, Mr Martin, I can only make that order if you consent to it.  What I will do is have my associate take the document to you and I will have Mr Kantor also explain to you the effect of the document.  If you are prepared to sign it, then you should do so now.

52I have signed that order, Mr Martin, as have you. 

53Mr Martin, you have previously undergone a forensic procedure for the taking of an intimate sample and the Office of Public Prosecutions has made application for that sample to be retained.  I am satisfied that that order should be made and I need to provide reasons for that decision.  The reasons are the circumstances of your offending are very serious, you have a history of prior offending and I regard you at some risk of re-offending; and further I regard the granting of this order in this case to be in the public interest, therefore that order will be made by me today.

54The prosecution has also made application for a disposal or forfeiture order and I will make that order upon it being presented to me. 

55MR MOORE:  Yes, Your Honour.  I have those orders here and, for that matter, I now have the original indictment, which I file.

56HER HONOUR:  Yes.

57MR MOORE:  It is F10180293.1.

58HER HONOUR:  Thank you.  I will accept the original indictment for filing.  If those documents can be provided to me, I will sign them.

59So I have got the disposal order; I do not know that I have got the retention order yet.

60MR MOORE:  I have just been told it is actually automatic, Your Honour, so Your Honour does not really need to sign it.

61HER HONOUR:  All right.  Now, Mr Martin, I am required under the Sentencing Act to tell you that I would have imposed if you had not pleaded guilty today.  Of course consideration of your plea of guilty necessarily takes into account your preparedness to cooperate in the giving of evidence in the forthcoming trial.  Doing as best I can, taking into account your plea of guilty, as I have indicated, I have sentenced you to a period of imprisonment of 18 months followed by a two-year community corrections order.  If you had not pleaded guilty, I would have imposed a sentence of five and a half years with a non-parole period of three years.

62I order that that indication be noted in the records of the court.

63Mr Martin, you have now served 295 days in custody.  I have indicated that that will be taken into account and reckoned as time already served under the sentence passed today.  The effect of that is that you will spend approximately eight months further in custody and you will then be subject to the rigorous requirements of the community corrections order for a further two years. 

64Mr Martin, this is clearly a very lenient sentence when considered against the background of your cowardly and vicious attack upon your victims.  It is a sentence which is justifiable only by reason of your cooperation with the prosecution of your co-offender.  This cooperation signals to me that you wish to take your place as a decent and law-abiding member of the community in the future and I will give you that chance through the crafting of the sentence as I have done it today.

65If you do not take this opportunity, Mr Martin, and you return to any court to be sentenced again, you would expect that in view of your past significant criminal history you will be sentenced to a very lengthy term of imprisonment.  Do you understand that?

66OFFENDER:  Yes, I do.

67HER HONOUR:  Yes, thank you.  Are there any other matters?

68MR MOORE:  No, Your Honour.  I just would like to mention a separate matter.

69HER HONOUR:  All right, thank you.  Remove the prisoner.  Mr Kantor, you can be excused.

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